[Congressional Record (Bound Edition), Volume 149 (2003), Part 3]
[House]
[Pages 2926-2928]
[From the U.S. Government Publishing Office, www.gpo.gov]




         THE BUSH RECESSION AND ITS IMPACT ON MINORITY WORKERS

  The SPEAKER pro tempore. Under a previous order of the House, the 
gentlewoman from California (Ms. Watson) is recognized for 5 minutes.
  Ms. WATSON. Mr. Speaker, I yield to the gentleman from California 
(Mr. Waxman).


              Cheney Task Force Records and GAO Authority

  Mr. WAXMAN. Mr. Speaker, I thank the gentlewoman for yielding, 
because I want to make this point very clearly that now that the 
President is Bush and the Vice President is Cheney, suddenly the 
priorities of the Republicans have changed. Oversight is no longer of 
interest to them. In fact, it is something to be avoided at all costs, 
including sacrificing the independence of GAO. Even when GAO asked for 
the most basic information, what private interest met with the White 
House task force, the answer is that GAO is not entitled to ask these 
questions.
  Consider this irony. In their eagerness to undermine the Clinton 
White House, Republicans in Congress tried to tear down the Presidency. 
Now, in their eagerness to protect the Bush White House, they are 
willing to tear down Congress.
  The implications of GAO's decision are enormous when they decided not 
to appeal; and without a realistic threat of legal action, GAO loses 
most of its leverage. This is a sea change in GAO's mission. It is no 
longer fundamentally nonpartisan nor fundamentally independent.
  Mr. Speaker, I include for the record three short documents into the 
Record. They are an exchange of correspondence with the Comptroller 
General on this issue and a fact sheet on the Walker versus Cheney case 
that my staff has provided.
         Congress of the United States, House of Representatives, 
           Committee on Government Reform,
                                 Washington, DC, January 31, 2003.
     Hon. David M. Walker,
     Comptroller General, General Accounting Office, Washington, 
         DC.
       Dear Dave: I am writing to follow up on our conversation 
     about the Walker versus Cheney litigation.
       I have great admiration for the work you have done as 
     Comptroller General. You have reinvigorated the organization 
     and given it a new sense of purpose, accomplished important 
     restructuring, and addressed pressing human capital needs.
       But now you face another--and in some ways even more 
     significant--challenge: how you respond to the district court 
     decision in Walker versus Cheney. This decision goes to the 
     very heart of GAO's independence.
       As you have indicated to me (and your lawyers have 
     indicated to my staff), you will read the decision as 
     narrowly as possible if you decide not to appeal. The narrow 
     reading is that the case does not apply when you are acting 
     pursuant to a request from a committee. If you decide not to 
     appeal, you will take the position that GAO can still use the 
     courts to uphold its statutory rights to information when 
     supported by a committee of Congress.
       While I understand the desire to minimize the impact of the 
     district court decision, allowing the decision to stand would 
     do irreparable damage to GAO's independence. As Comptroller 
     General, you have a 15-year tenure, so that you can exercise 
     independent judgment and conduct independent investigations. 
     You are not simply an agent of congressional committees: GAO 
     exists, to quote your mission statement, ``to ensure the 
     executive branch's accountability to the Congress under the 
     Constitution and the federal government's accountability to 
     the American people.''
       If you do not appeal, you will in effect have sacrificed 
     the independent that is essential to your mission. At best, 
     you will be able to pursue effective investigations only when 
     your work is supported by the majority in Congress. 
     Investigations that are requested by the minority would 
     become second-class investigations because GAO would have no 
     ability to compel--or to threaten credibly to compel--the 
     production of information in the face of executive branch 
     recalcitrance.
       Allowing the district court decision to stand would also do 
     permanent damage to the Comptroller General's statutory 
     authority to conduct self-initiated work. Under Walker versus 
     Cheney, this essential independence is crippled because you 
     would have no standing to assert your independent rights of 
     access to agency information.
       Now is exactly the time when an independent GAO is most 
     important. When the White House is controlled by one party 
     and Congress by another party, the public can rely on 
     Congress to conduct oversight of the administration. But 
     when--as now--there is one-party control of both the White 
     House and Congress, congressional oversight will be minimal. 
     If GAO is not available to conduct independent oversight, 
     there simply won't be any.
       The need for GAO independence is especially important given 
     the inclinations of the current Administration. This 
     Administration has taken a uniquely hostile approach to 
     oversight and public disclosure. The Administration regularly 
     ignores requests from members of Congress for information, 
     resists GAO efforts to obtain records, and has even issued a 
     directive curtailing public access to information under the 
     Freedom of Information Act. This penchant for secrecy makes 
     GAO's independence of paramount importance.
       Given the current political alignment in Washington, it is 
     clear what the easy decision would be: don't appeal. But the 
     core values of GAO are ``accountability, integrity, and 
     reliability.'' I urge you to make your final decision on the 
     basis of these core principles.
           Sincerely,
                                                  Henry A. Waxman,
     Ranking Minority Member.
                                  ____



                               U.S. General Accounting Office,

                                 Washington, DC, February 7, 2003.
     Hon. Henry B. Waxman,
     Ranking Minority Member, Committee on Government Reform, 
         House of Representatives.
       Dear Mr. Waxman: Thank you for your letter dated January 
     31, 2003, regarding the district court decision in Walker v. 
     Cheney and your kind words on GAO's performance during my 
     tenure as Comptroller General of the United States (CG).
       I am announcing my decision today and have attached a copy 
     of our press statement for your information (attachment). 
     This decision, like my initial decision to file suit last 
     February, was by no means an easy one to make because many 
     factors needed to be considered, including legal, 
     institutional and other issues. In addition, there were good 
     arguments to be made both for and against an appeal. Please 
     be assured that my decision was based on what, in my best 
     judgment, is in the best overall interests of the Congress, 
     the GAO, and the American public. I also feel comfortable 
     that it is fully consistent with GAO's core values of 
     ``accountability, integrity, and reliability.''
       As noted in the attached statement, we strongly disagree 
     with the district court decision. We do not, however, agree 
     with your characterization of the opinion. In addition, we do 
     not believe that the district court opinion will have a 
     significant adverse effect on our ability to serve the 
     Congress and the American people. Furthermore, with regard to 
     GAO's policy of not disenfranchising the minority, the 
     Court's decision did not address, and does not affect, our 
     engagement acceptance policy or the CG's authority to conduct 
     self-initiated work.
       As you know, in enacting 31 U.S.C. Sec. 716, the Congress 
     gave GAO the independent right to sue to compel the 
     production of information irrespective of whether the request 
     is made by a committee, a member, or is self-initiated by the 
     CG. As the attachment notes, the district court's decision in 
     Walker v. Cheney does not set a binding precedent on GAO's 
     overall right to sue in the future. Importantly, it does not 
     affect GAO's statutory audit authority, access rights, or the 
     obligation of agencies to provide GAO information. As a 
     result, we remain willing and able, should the facts and 
     circumstances warrant, to file suit to press our access 
     rights in connection with a different matter in the future. 
     In addition, the court's decision does not affect GAO's 
     ability to issue demand letters and statutory reports to the 
     Congress in connection with an agency's refusal to disclose 
     information to which we are entitled. There are also 
     traditional remedies available to the Congress

[[Page 2927]]

     that can, have, and, we trust, will continue to be employed 
     to aid our audit and access authority. However, as I noted 
     when we met, given the district court's decision, and other 
     considerations, as a matter of procedural prudence, I believe 
     it would be appropriate to have an affirmative statement of 
     support from at least one full committee with jurisdiction 
     over any records access matter prior to any future court 
     action by GAO. Furthermore, now that I have been in office 
     for over four years, I believe it is appropriate to work with 
     you and other Congressional leaders to review and update our 
     current Congressional protocols and address certain other 
     related matters.
       We appreciate your past understanding and support and we 
     trust that we can count on that same understanding and 
     support in the future. I would be pleased to meet with you to 
     discuss my decision should you so desire. In addition, I look 
     forward to meeting with you soon to discuss our Congressional 
     protocols and related matters.
           Sincerely yours,
                                                  David M. Walker,
                         Comptroller General of the United States.
       Attachment.

                      Fact Sheet--Walker v. Cheney

       In December 2002, federal district court Judge John Bates 
     issued a ruling in Walker v. Cheney that holds that GAO lacks 
     ``standing'' to enforce its statutory rights to information. 
     This ruling may do serious damage to GAO's ability to serve 
     Congress. The court's ruling is so sweeping that the issue in 
     the case is no longer about the actions of the Cheney energy 
     task force: it's about the role of GAO.
       GAO's ability to assist Congress in overseeing the 
     executive branch is imperiled. Under the logic employed in 
     the court's ruling. GAO has no standing to compel the 
     executive branch to provide any documents or information. 
     Thus, federal agencies may use the decision to argue that GAO 
     cannot enforce its requests for information. In effect, 
     agencies are likely to take the position that they--not GAO--
     can dictate what information is shared with GAO. According to 
     the Congressional Research Service, the decision ``could 
     greatly limit the ability of GAO to compel production of 
     information from the executive branch'' and ``the executive 
     branch could become significantly less responsive to future 
     GAO inquiries.''
       Other core GAO powers are also in jeopardy. GAO has 
     statutory authority to demand important records from the 
     private sector, such as information from Medicare or Medicaid 
     providers or from federal contractors. Using the logic in the 
     court's ruling, private companies being audited by GAO may 
     argue that GAO does not have standing to enforce these 
     rights.
       Another important function of GAO is its role in preventing 
     improper ``impoundments'' by the executive branch. The 
     Impoundment Control Act sets forth the limited circumstances 
     under which the executive branch can defer expending 
     appropriated funds. To ensure compliance with these limits, 
     the law authorizes GAO to sue the executive branch if the law 
     is violated. This core GAO authority could also be challenged 
     by the executive branch under the court's ruling.
       The court's decision even challenges Congress' ability to 
     sue the executive branch. The opinion says that ``no court 
     has ever ordered the Executive Branch to produce a document 
     to Congress or its agents'' and dismisses Department of 
     Justice opinions which conceded Congress' ability to sue to 
     enforce a subpoena. According to CRS, the decision ``casts 
     doubt on the ability of committees of the Senate and of the 
     House of Representatives to bring suit to enforce 
     subpoenas.'' If the decision is not reversed, CRS says that 
     it ``conceivably could be cited by the executive branch--or 
     even a private party--for the broad proposition that the 
     legislative branch does not have standing to enforce its 
     demands for information in the courts.''
       No congressional remedy is available. In effect, the court 
     ruled that Congress violated Article III of the Constitution 
     when it authorized GAO to sue for access to information. This 
     is not an issue that Congress can rectify by enacting more 
     explicit legislation. If the opinion stands, a constitutional 
     amendment could be required to revive GAO's powers.
       There is a significant likelihood that the district court's 
     decision will be overturned on appeal. The court's opinion is 
     not well reasoned or well supported:
       1. The court failed to recognize that heads of executive 
     agencies routinely assert ``institutional'' injuries in 
     litigation. The court rejects the Comptroller General's 
     standing because the Comptroller General is asserting an 
     ``institutional'' interest in obtaining information, not a 
     personal injury. But heads of agencies always assert 
     ``institutional'' interests in litigation. If standing 
     required a ``personal'' stake in the litigation, the Attorney 
     General and heads of other executive agencies could not bring 
     legal action to assert federal rights. The court never 
     explains why GAO's institutional interests asserted by 
     agencies when they bring lawsuits to enforce their statutory 
     rights to information.
       2. The court improperly dictates to Congress how it must 
     collect information needed for legislative purposes. The 
     court's decision relies heavily on the fact that Congress did 
     not vote to authorize the Walker v. Cheney litigation. The 
     court does not hold that such a vote would be sufficient to 
     give GAO standing, but it does hold that GAO cannot have 
     standing without such a vote. This is an unprecedented 
     intrusion into the internal operations of the legislative 
     branch. Congress determined by statute that it was 
     appropriate to create GAO to assist members in collecting 
     information and conducting oversight, just as Congress has 
     created CBO to assist members on budget issues and CRS to 
     assist members with their research needs. Congress also 
     determined by statute that GAO should have the power to sue 
     agencies for information, if necessary. No provision of the 
     Constitution forbids Congress from creating congressional 
     agencies to assist members in carrying out their duties, and 
     no provision bars Congress from giving these agencies 
     authorities, such as the ability to sue to obtain 
     information, necessary to carry out their assigned duties. 
     There is no precedent for the district court to prohibit 
     Congress from doing so in this case.
       3. The court ignored key precedents. The district court 
     completely ignore Bowsher versus Merck, 460 U.S. 824 (1983). 
     In this case, the Supreme Court upheld GAO's rights to obtain 
     certain records from a drug company, rejecting the company's 
     request for a declaratory judgment that GAO was not entitled 
     to the records. The district court's holding that enforcing 
     GAO's rights to information would violate the standing 
     requirements of Article III conflicts fundamentally with the 
     Supreme Court's decision to enforce these very rights in 
     Bowsher versus Merck. The district court also ignores United 
     States versus McDonnell Douglas Corp., 751 F.2d 220 (8th Cir, 
     1984), and United States versus Abbott Laboratories, 597 F.2d 
     672 (7th Cir. 1979), which upheld GAO's statutory right to 
     bring a lawsuit to compel a contractor to provide records.
       4. Raines v. Byrd is distinguishable. The district court 
     relies on Raines versus Byrd, 521 U.S. 811 (1997), a case in 
     which several members sued to challenge the constitutionality 
     of the line-item veto. But there are three fundamental 
     differences between the Raines case and this one. First, GAO 
     is seeking access to information and not trying to prevent an 
     abstract, generalized harm like diminution of congressional 
     authority. The Supreme Court has held that the denial of 
     information is a concrete injury that conveys standing. 
     Second, the line-item veto at issue in the Raines case had 
     not yet been exercised. In essence, the congressional 
     plaintiffs were seeking an advance ruling that any exercise 
     of the authority would be unlawful. In this case, there is a 
     specific dispute over specific documents that is being 
     litigated. Third, the Raines decision placed some importance 
     on the fact that the members were not authorized to represent 
     Congress, and in fact both houses of Congress opposed their 
     lawsuit. Here, by contrast, Congress has specifically 
     delegated to GAO the power to sue.
       As a practical matter, GAO may be bound by the ruling if it 
     does not appeal. Under GAO's statute, the D.C. district court 
     is the only court where GAO can litigate claims against 
     agencies for refusing to provide information, so this is not 
     a situation in which GAO can gain a strategic advantage by 
     looking for another venue to litigate the issues in question. 
     If the decision is not appealed and GAO files another access 
     suit in the future, the district court judge might rule that 
     the issue of GAO's standing has been decided and cannot be 
     re-litigated. Even if the judge allows the question of 
     standing to be re-argued, the judge is likely to follow the 
     precedent set by Judge Bates's ruling, and any appellate 
     court would question why GAO did not appeal the initial 
     ruling. If no appeal is taken, GAO could be permanently bound 
     by the decision.
       An appeal leaves open other grounds for decision. The 
     government offered many arguments in the litigation, 
     including statutory claims such as the one that GAO's 
     authority to obtain ``agency'' records does not extend to the 
     Office of the Vice President. These other issues go the 
     merits of the dispute about GAO's right to the energy task 
     force records. A decision on these other grounds, even if 
     adverse to GAO, would not have the profound impact on the 
     operations of GAO that the district court's ruling 
     potentially has.

  Ms. WATSON. Mr. Speaker, the American economy has been mired in 
recession since March of 2001. This past December saw the unemployment 
rate rise to 6 percent, meaning that one in every 17 American workers 
was out of work.
  One of the most troubling aspects of this rescission is the amount of 
time that workers have been idle. During the Clinton economic expansion 
of the 1990s, America dramatically reduced long-term unemployment, 
those workers who had been out of work 27 weeks or more. From February 
of 1993 until February of 2001, roughly the amount of time Bill Clinton 
was in office, long-term unemployment fell by two-thirds. That is 1.2 
million long-term unemployed Americans who went back to work.

[[Page 2928]]

  But in less than 2 years of this administration, there is a recession 
and the administration has managed to completely erase those gains. By 
this past December, the administration's economic mismanagement has 
managed to push long-term unemployment back up to where it was when his 
father was in office.
  I remember feeling a certain amount of deja vu after having another 
President Bush in office. But I do not think that many people realized 
that this administration would mismanage the economy so badly that we 
would return to economic stagnation reminiscent of the early 1990s.
  But these broader economic statistics only tell half the story. 
During the Clinton expansion of the 1990s, minority communities made 
enormous strides in breaking out of poverty, as more African Americans, 
Asian Americans, and Latinos found good jobs in the prosperous economy.
  Since the beginning of this recession, however, these numbers have 
turned around sharply. More than one in 10 African American workers are 
now out of a job. American workers of minority heritage have 
historically worked at the edges of the economy. Because of the jobs 
they possess, too many of these workers are forced to bear the full 
brunt of swings in the labor market.
  We need to get America back to work. We have to help this President 
realize that his fiscal and economic policies have not helped America 
out of the recession, and it is possible that it has been prolonged.
  The budget that this President has submitted to Congress is a 
sweetheart deal for the President's wealthiest supporters. Meanwhile, 
budgets at all levels of government, Federal, State and local, are 
swimming in red ink. The President's budget, in effect, hides a $1 
trillion tax increase. His budget borrows against the future, leaving 
us with a $1 trillion bill that Americans will have to pay over the 
next decade in higher taxes, higher interest rates, and lower growth.
  We will only get out of this recession when average Americans get 
money back into their pockets. I urge the President to rethink his 
failed economic policies and get America back to work.

                          ____________________